Shree Kaprecherya Manpower Services, Raigad V. Income-tax Officer,

ITA 2091/PUN/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9160 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 09-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIL KUMAR CHAWARE
• Assessee Lawyers: KIRAN SANMANI

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE , , . , ! , '# BEFORE MS. SUSHMA CHOWLA, JM AND SHRI D. KARUNAKARA RAO, AM . / ITA NO.2091/PUN/2016 $ % % / ASSESSMENT YEAR : 2010-11 M/S. SHREE KAPRECHERYA MANPOWER SERVICES, G.P CHAWL, HOUSE NO. 4, OPP. ADITYA BIRLA, TALOJA MIDC, TAL- PANVEL, RAIGAD. PAN : ABJFS7049H ....... / APPELLANT &$ / V/S. THE INCOME TAX OFFICER, WARD-2, PANVEL. / RESPONDENT APPELLANT BY : SHRI KIRAN SANMANI RESPONDENT BY : SHRI ANIL KUMAR CHAWARE / DATE OF HEARING : 20.03.2018 / DATE OF PRONOUNCEMENT : 23.03.2018 ' / ORDER PER D. KARUNAKARA RAO, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDE R OF COMMISSIONER OF INCOME TAX (APPEAL)-2, THANE DATED 24.06.2016 FOR ASSESSMENT YEAR 2010-11. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1.THE LEARNED CIT(A) ERRED ON FACTS AND IN LAW IN U PHOLDING THE DISALLOWANCE OF RS. 9,05,153 (9,04,153 SIC.) U/S.36(1)(VA) ON ACCOU NT OF ALLEGED DELAY IN PAYMENT OF EMPLOYEES CONTRIBUTION TOWARDS PROVIDENT FUND. HE FAILED TO APPRECIATE THE FACT THAT ALL THE PAYMENTS ARE MADE MUCH BEFORE THE DATE OF FILING OF ITS RETURN OF INCOME U/S.139. HE FURTHER FAILED TO APPRECIATE THE SETTLED POSITION IN LAW THAT 2 ITA NO.2091/PUN/2016 A.Y.2010-11 EMPLOYEES CONTRIBUTION TOWARDS PROVIDENT FUND IS A LLOWED IF PAYMENT IS MADE ON OR BEFORE DUE DATE OF FILING OF RETURN U/S.139 O F THE ACT. 2. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE OR SUBSTITUTE ALL OR ANY OF THE GROUNDS OF APPEAL. 3. THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO AN AFFIDA VIT DATED 06.10.2016 FILED BY ASSESSEE AND SUBMITTED THAT THERE IS DELAY OF 4 DAYS IN FILING THIS AP PEAL. THE DELAY IS OCCURRED DUE TO RESIGNATION OF THE PERSONS WO RKING IN ACCOUNTS DEPARTMENT WHO WERE LOOKING AFTER INCOME TAX MATTERS. THEREFORE, RE LYING ON THE CONTENTS OF THE AFFIDAVIT DATED 06.10.2016, THE LD. COUNSEL OF ASSESSEE PRAYE D FOR ADMITTING THE APPEAL FOR ADJUDICATION CONDONING THE DELAY IN FILING THE APPEAL. 4. AFTER HEARING BOTH THE SIDES AND CONSIDERING THE CONT ENTS OF AFFIDAVIT DATED 06.10.2016 FILED BY THE ASSESSEE, WE ARE OF THE OPINION THAT THE DELAY OF 4 DAYS IN FILING APPEAL IS REQUIRED TO BE CONDONED AND TAKEN UP THE APPEAL FOR ADJU DICATION. 5. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT TH E ASSESSEE IS ENGAGED IN THE BUSINESS OF SUPPLY OF MANPOWER TO COMPANIES AND FILED RETU RN OF INCOME DECLARING INCOME AT RS.11,69,040/-. IN THE ASSESSMENT PROCEEDINGS, T HE ASSESSING OFFICER MADE VARIOUS ADDITIONS/DISALLOWANCE OF DEBIT AMOUNT UNDER THE HEAD EMPLOYEES PROVIDENT FUND. AS PER DISCUSSION GIVEN IN PARA-4.4, THE AS SESSING OFFICER MADE DISALLOWANCE AT RS.9,04,153/- AFTER NOTING THAT THE ASSESS EE BELATEDLY REMITTED THE SUBSCRIPTION TO THE FUND. 6. WITH REGARD TO EMPLOYEES CONTRIBUTION TO PROVIDENT F UND, IT IS FACT THAT THE ASSESSEE DID NOT REMIT THE SAID SUBSCRIPTION AS PER DUE DATE PROVIDED IN THE RELEVANT STATUTE. HOWEVER, ALL THE PAYMENTS WERE MADE BEFORE THE FILING OF RETURN OF INCOME U/S.139(1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). THE ASSESSING OFFICER DID NOT ACCEPT THE SUBMISSION OF THE ASS ESSEE IN THIS REGARD. THE COMMISSIONER OF INCOME TAX (APPEAL) CONFIRMED THE ORDER OF ASSESSING OFFICER 3 ITA NO.2091/PUN/2016 A.Y.2010-11 RELYING ON DECISION OF THE HON'BLE GUJARAT HIGH COURT IN T HE CASE OF GUJARAT STATE ROAD TRANSPORT CORPORATION, 41 TAXMANN.COM 100. 7. AGGRIEVED WITH THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL), ASSESSEE FILED THE PRESENT APPEAL BEFORE US RAISING SOLITARY GROUND EXTRACTE D ABOVE. 8. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE BROUGHT OU R ATTENTION TO THE FACT THAT ALL THE PAYMENTS TO EMPLOYEES PROVIDENT FUND HAVE BEEN MADE BY THE ASSESSEE WELL BEFORE FILING OF RETURN OF INCOME AND THE SAME IS EVIDENT FROM DATES MENTIONED IN PARA 4.2 OF ORDER OF COMMISSIONER OF INCOME TAX(APPEAL). HE ALSO SUBMITTED THE EXISTENCE OF THE LEGAL PROPOSITION FOR ALLOWING THE CLAIMS OF THE ASSESSEE WHEN THE PAYMENTS ARE REMITTED BEFORE THE DUE DATE OF FILING THE RE TURN OF INCOME. THEREFORE, IN THIS CASE, ALL PAYMENTS WERE MADE FROM MAY, 2009 TO APR IL, 2010 I.E. WELL BEFORE THE DATE OF FILING RETURN OF INCOME I.E. 29 TH SEPTEMBER, 2010 AND THIS FACT IS UNDISPUTED. THUS, AS PER THE LD. AR THE CLAIM OF THE ASSE SSEE NEEDS TO BE ALLOWED IN FAVOUR OF THE ASSESSEE IN VIEW OF VARIOUS JUDGMENTS MENTIO NED IN PARA-4.3 OF THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL). 9. ON HEARING BOTH THE PARTIES AND PERUSING THE FACTS AN D BINDING JUDGMENTS, WE FIND THE GROUND OF ASSESSEE IS REQUIRED TO BE ALLOWED IN FAV OUR OF THE ASSESSEE IN VIEW OF THE CONSIDERED FACT THAT ALL THE PAYMENTS WERE MA DE TO EMPLOYEES PROVIDENT FUND MUCH BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME. A CCORDINGLY, THE SOLITARY GROUND RAISED BY ASSESSEE IS ALLOWED. 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 23 RD DAY OF MARCH, 2018. SD/- SD/- ( / SUSHMA CHOWLA ) ( . / D. KARUNAKARA RAO ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; !' / DATED : 23 RD MARCH, 2018. SB 4 ITA NO.2091/PUN/2016 A.Y.2010-11 '()*+,-,* / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEAL)-2, THANE. 4. THE PR. CIT-2, THANE. 5. %&' () , * () , - +,- , / DR, ITAT, SMC BENCH, PUNE. 6. './ 01 / GUARD FILE. // TRUE COPY // * 2 / BY ORDER, 3 (- /PRIVATE SECRETARY * () , / ITAT, PUNE.